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Highlights from The Downballot: Getting the National Popular Vote across the finish line [1]

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Date: 2023-02-16  

The saga around Judge Hector LaSalle’s nomination to the New York Court of Appeals has gone on longer than many would have expected, but now it has come to an end. After a recently filed lawsuit by a Republican senator forced a floor vote on the nomination on Wednesday, many Democrats joined Republicans in voting down the nomination. “The nomination on the floor failed as I think everyone expected at this point, but the margin was really a massive rebuke to Governor Hochul, who had kept pushing this and pushing this and pushing this,” Beard said, noting the significance of the lopsidedness of the vote. Ultimately, 39 senators voted against the nomination—38 of whom were Democrats and one a Republican. Only 20 senators voted for LaSalle's nomination.

Only one Democrat actually voted for Hochul’s nominee, along with 19 Republicans, making this, in Beard’s words, “a massive defeat.” What happens next? Hochul said that the process will start all over again, which essentially means that the committee that presented Hochul with a list of seven potential nominations will create a new list for her to choose from. From this, “we will hopefully get a better nominee that Democrats can agree on,” Beard said.

The zero percent chance of him becoming the chief justice for weeks now, and this insistence on reaching every single point to force this floor vote that everyone knew was going to fail, was totally unexplainable, Beard said: “I have no idea what she's thinking or her advisors are thinking.”

Nir believes this will be hurt Hochul’s record in the years to come:

Yeah, and I could be wrong. It's still several years out, but I feel like this could and even ought to be the basis for a primary challenge to her. I mean, she had just had her whole party, like you said, her whole party rebuked her. Maybe this isn't an issue that would gain traction with voters. The primary would still be almost four years away, but man, I wouldn't want to have to defend this on my record if I were having to go before Democratic voters again.

With several elections happening this coming Tuesday, Nir and Beard provided a quick primary preview of those races, one of which is a special election. In Wisconsin, there are two big races. First, at the top of the ticket is the officially nonpartisan primary for an open seat on the state Supreme Court—a seat will determine whether conservatives keep control of the court or whether liberals can win control back from conservatives who've held the court for many, many years. There are four candidates running, all judges or former judges. There are two liberals in the race, Janet Protasiewicz and Everett Mitchell, and two conservatives, Jennifer Dorow and Dan Kelly. Fundraising reports just came out a few days ago, and Protasiewicz, as she has the entire race, is easily in the lead.

”This race has already seen millions of dollars in spending and it's expected that once it goes to a top two, millions more are going to be spent potentially being the most expensive judicial race in Wisconsin history, given how important this race is. So if you live in Wisconsin, expect to see a lot of ads in the next month or two,” Beard added.

The other race that's on the ballot also has huge consequences: the special election in the 8th state Senate District, in the northern Milwaukee suburbs. It is a GOP-held seat, and Democrats are fighting very hard to flip it because Republicans just won a super majority in the state Senate in November. If Democrats can actually flip this seat, that would erase that super majority. Only one Democrat is in the race, Attorney Jodi Habush Sinykin, who also easily outraised all of her opponents combined.

Nir offered this overview of the playing field:

She doesn't have any Democratic opponents, but there are three Republicans running in the race. Two of them are members of the State Assembly, Janel Brandtjen and Dan Knodl, though there is also a third Republican in the race, a local elected official, Van Mobley. Habush Sinykin has really had the airwaves pretty much to herself thanks to her much stronger fundraising. She definitely wants to face Brandtjen rather than Knodl, Brandtjen is completely unhinged, an election conspiracy theorist, and also was kicked out of the GOP caucus by her colleagues because they simply can't stand her and don't trust her at all. But again, no polling difficult race to poll in any event. So again, we won't know who Habush Sinykin opponent will be, and once more, that general election will also be taking place on April 4, same day as the big Supreme Court race.

Beard noted that what they’ve seen a lot in November elections is that these downballot races can really be affected by the top of the ticket, so turnout will likely be higher than if it was just a random special election in, say, June—because it's matched with the spring primary due to the high-profile statewide judicial race. “This district is going to have higher turnout than a normal special. So it'll be really interesting to see what we get.”

One last race to keep an eye on is New Hampshire's Strafford County, District 8, which is known locally as Rochester Ward 4, where there will be a do-over of a race that wound up tied in November between Democratic state Rep. Chuck Grassley and Republican David Walker. The New Hampshire House is very close. There are currently 201 Republicans to 198 Democrats in the chamber. If Grassley can hold on to his seat, that would shrink it down even closer, 201 to 199.

In these types of situations, even one seat, one vote, would make a huge difference. As Nir elaborated:

That is in fact the closest the New Hampshire House has ever been in its entire history, and the amounts of money being raised and spent on this race are among the highest ever for a special election in New Hampshire. It's still going to be decided by a very small number of votes, probably just a couple of thousand votes, but interest is extremely high. And just this week Beard, there was a vote in the house on a piece of legislation that ended in a tie 182 to 182 because of a bunch of absences. This is the kind of thing that has started to happen in the house because it's so close. So had Grassley been there, perhaps that vote would gone a different way, but it really shows you that when a legislature is this narrowly divided, every single vote counts.

“We tell people your vote matters, every vote matters, and that's absolutely true—but if you want a guarantee of your vote mattering, doing a redo of a tied election in a very small district is about as high as likelihood as you're going to get to every vote mattering,” Beard added. “So if you live in Rochester in New Hampshire, check and see if you're in this district because literally your vote very well could decide the election.”

Lastly, Montana recently became the 50th and final state to complete its legislative redistricting process. Montana engages in an unusual process where their state legislature has to review the maps during a regular session, which then means it has to go to a later year than it normally would. The commission finalized these new maps over the weekend. The independent member cited with the two Democratic commissioners to approve their plan. Their plan provides basically a 31-18 split in favor of the GOP and the Senate and a 60-40 split in favor of the GOP in the house.

Beard offered this analysis:

Now, you'd think the GOP would like those numbers, but they are less than they currently have, and so the GOP members weren't happy about it. They voted against it. They're talking about suing to overturn these maps. Obviously, we're going to have to wait and track and see how that goes in the courts. The other thing to note, of course, is that constitutional amendments in Montana need 100 votes across the two Houses to get placed on the ballot, and Republicans currently enjoy those margins. But with these new maps, there's a very good chance that they would lose that and no longer be able to put constitutional amendments onto the ballot without the support of some Democrats. So that would be some positive news if these maps are upheld and actually used in 2024.

One thing Nir pointed out is that if these maps wind up getting challenged by Republicans and end up before the state Supreme Court, that court actually is quite moderate and quite reasonable and may turn back a GOP challenge if it is baseless: “We talked about that court last year because one swing vote on the court was up for election. Conservatives very much tried to target her. They really want to transform that court and drag it far, far to the right and they failed. And that was a very, very important win not just for Democrats, but for moderates and for the rule of law in Montana. So the Montana GOP might find themselves frustrated once again with yet another institution in their state if they take this one to court.”

Next up, our hosts discussed a new data set that has been updated thanks to Daily Kos Elections Staff Writer Stephen Wolf, an update of the popular vote for the United States Senate. It shows just how out of balance the Senate is. So, of course, Democrats not only held their majority in the Senate in 2022, but they even increased it by flipping Pennsylvania. Now, they now hold 51 seats, and Republicans 49. But Wolf has calculated some more numbers that shed a lot of light on that seat breakdown.

Those 51 Democratic senators represent 58% of the country's population and Republicans just 42%—an even bigger split than it was prior to the 2022 elections, when Democrats had a 57-43 differential in terms of the population that the members of their caucus represented. So, Nir noted, the problem has gotten even worse.

Wolf also compiled the total votes that every sitting member of the Senate has received. That's not just the vote from the most recent November elections, but the last three elections because the Senate is staggered into three separate groups, requiring data from the elections for 2018, 2020, and 2022 to be combined in order to figure out the total popular vote. Wolf found that those figures are extremely lopsided as well: Democrats won 50% of the popular vote, and Republicans only 46% of the popular vote. “Really, it's more than a four-point margin with decimals, but Democrats only hold a 2% margin in terms of the total number of seats. And the problem is really extreme when you look at it over a period of years,” Nir said.

In this century, even though Democrats have won the Senate popular vote every time, every single set of three elections, Republicans have still controlled the Senate half the time. In fact, Republicans haven't won the Senate popular vote since 1998, and yet for pretty much 12 of the last 24 years, they have managed to control the Senate. As Nir put it:

This is a completely borked situation. Of course, when you bring this up, a lot of trolls on Twitter, they say, ‘Well, the Senate is supposed to be this way. It's not supposed to be democratically representative.’ That's a problem. The founders screwed up. The Senate is a terrible idea. It sucks. We should change the Constitution. I wish we could change the Constitution. I wish we could get rid of the Senate altogether. But Steven's data really throws this into sharp, sharp contrast. There's an excellent post explaining all of it going into much greater detail. Again, check out the show notes, check out our Twitter feed at DK Elections if you really want to dive into this. This is a huge, huge problem, but there are some things that we actually can do about this.

Beard chimed in with some ideas:

Abolishing the Senate entirely would be great but is pretty much off the table. But there are some things that could help ameliorate the problem here. The most obvious and likely is to admit additional states that would help ease this disparity. Obviously, there's been a lot of talk about the District of Columbia and Puerto Rico being admitted as states. That is something that we should do anyway because people in those places, including myself, deserve representation in our legislative bodies, but it would also help make the Senate more balanced and less skewed towards these very rural Republican leaning states that have so much representation because of the two Senators per state way that it's set up.

However, the problem of the filibuster still exists, Nir pointed out, and remains the biggest barrier to progress.

Next, Nir and Beard welcomed Pearson onto the show.

“So the idea of moving to a national popular vote instead of having to rely on the Electoral College, I will say, is probably the single most popular idea that we have ever promoted in terms of activism at Daily Kos,” Nir said, before asking Pearson to share more about the work of the National Popular Vote Interstate Compact.

Pearson thinks that the national popular vote is an important topic, and noted that there is a lot of interest everywhere he goes:

People are either between, you mean this could happen, or they're really excited that it's underway. It turns out states control the Electoral College completely. It is up to states. In fact, many people will know that Maine and Nebraska award electors a little differently. That's because the Constitution just sets up the Electoral College and says, "States, here you go." I live in Vermont. "Vermont, you got three electors. Do what you want with it." In Vermont, we use the winner take all rule, which is what everybody does basically, except for Maine and Nebraska. But that's just state law. So states are coming together to create a national popular vote. When enough states pass our bill, we'll still have the Electoral College, but it'll just be a rubber stamp for the candidate that gets the most votes in the country. Get the most votes, you go to the White House. Along the way, we make every vote equal. One person, one vote is an important principle in our elections. We also make it so that every voter in every state matters in every election and in every Presidential election, which is not well understood. But there's such an intense concentration on just a small number of so-called battleground states that really undermines our democracy, undermines voter turnout. It has all sorts of warping impact on policy. So we fixed that and we guarantee you get the most votes, you go to the White House. So that's what National Popular Vote is about. We're going state to state and working on legislative House and Senate and Governors and getting them to slowly pass our bill.

”We love getting into the nitty-gritty of things, the mechanics of how bills operate and how elections work,” Nir said, posing a hypothetical: “So let's say that the National Popular Vote Compact was in force. It's an election. It's a Presidential year. The election happens. It's election night. All the votes are cast and tallied. Then what?”

The National Popular Vote Bills have currently already been passed in 15 states, plus D.C. Altogether, those states have 195 electors. But in the law that states are passing, it says the national popular vote won't take effect until it's passed by states that hold a majority of the electors. Pearson explained,

You need 270 electorates to go to the White House. You also need 270 electorates for our bill to spring to life. So these 16 states, they have 195 electorates. When we add another handful of states with at least 75 electorates, then it will govern a Presidential election. At that point, you'll run a campaign, you add up your popular votes in all 50 states plus D.C., and whichever candidate gets the most votes in the country will get at least 270 electors thanks to our bill. So each state, when they're passing the National Popular Vote Law, they're saying in Vermont, "We've passed it." They're saying, "Our three electorates will go to not the candidate that wins Vermont," which is what happens today, "but our three electorates to win three electorates from Vermont, you have to get the most votes in the country." And so whenever the Republican or Democrat gets the most votes in the country, boom, they'll get our three electorates and they will be guaranteed, and this is why the trigger is in the law, that it only takes effect when it works. So get the most votes in the country, boom, you get a majority of the electorates, you go to the White House. So we won't watch that red/blue map every four years when you're cheering your glass or crying in your beer, because it will be irrelevant who wins a particular state. It'll be the tally, and I hope we can talk about that. That's one of the exciting things about moving away from the winner take all system to national popular vote is margins matter. So we don't have people being totally taken for granted in California or Vermont or New York or Illinois or Oklahoma, Idaho, all these safe blue and safe red states where, after all, the candidates, they don't care today if they win Vermont by 12 points or 25 points. They get the same three electors. That totally changes under a natural popular vote and means that every voter matters. And even if the Democrat continues to get the most votes in Vermont, they're going to be looking to get another 5,000 votes to help them offset the Republican advantage in Alabama, for instance. And in that way, every voter is engaged in a very real process. Right now in Vermont, you want to get involved, you get in your car and drive to New Hampshire because it's the closest battleground state. This totally warps our sense of the process working and my vote counting and on and on and on.

”So if the compact were to take effect, you could have a situation where, let's say, the Republican candidate wins the national popular vote. But then a blue state like New York, which is a member of the compact, would give its electoral votes to the Republican even though New York probably would've voted for the Democrat,” Nir said, summing up what the implications would be. “But what you're saying is it doesn't matter because you have states representing a majority of the electoral college, at least 270 votes, all agreeing to do this together. No one is doing it one by one. So the national popular vote winner wins anyway.”

Pearson replied:

You're exactly right under that scenario, the Republican gets the most votes in the country. Blue states that have passed national popular vote, the slate of electors that meet in the state capitol in the middle of December will be the Republican slate of electors. That's exactly what our law says and that reflects the choice that legislators are making with our bill is do we want the electors to represent the total that happened in our state like we do now? Does it matter that the state turns blue or does it matter that every vote's equal across the country and guarantee you get the most votes, you win the election? That's exactly what the National Popular Vote stands for, and that is the choice that states are signing on as they pass our bill.

Beard brought up an argument against the National Popular Vote that he often hears: “You hear these complaints from these small states that no one will care about them. And particularly, swingy small states like Nevada or like New Hampshire that get a lot of attention because they are close within those states as opposed to states like the Dakotas, which are small and don't get any attention. But they complain that if the popular vote is the determining factor, all the presidential candidates will do is campaign in California and New York and Texas and Florida. And so they want to keep their sort of special part of the pie as small swing states, and that's why they don't like this.”

Pearson unpacked this argument, emphasizing that under the National Popular Vote, all votes will be equal, no matter the state the voter comes from—and that grassroots activism can happen more easily on a local level:

Yeah. You do hear that a lot. When this passed on the Vermont House, this argument was brought up. We'll lose our influence, and a champion of the bill stood up and said, how could we have any less influence? We have zero influence. By the way, New York has zero influence, a big beefy state. That's a safe blue state, and campaigns don't court those votes. And so there's a few things to know. First of all, Delaware, Vermont, DC, Hawaii, I think I'm forgetting one. Rhode Island. All very small states with three or four electoral votes that have all passed our bill. So take it from them, these are people that live in the small states that say the system is not working for us. There is like a mathematical advantage that small states have very plainly. When I live in Vermont, I get three electors. I get more of an elector when I vote than somebody across the lake in New York for me. But that has no bearing on political influence because we're a safe blue state, and this applies to safe red states. Candidates don't visit us, they don't poll us, there's no grassroots activity, there's no advertising, there's no events, there's just nothing. And that's happening in 35 to 40 states, depending on the cycle. They're just completely taken for granted because of the win take all system. And that applies to all, virtually all of the very smallest states, with the exception you mentioned New Hampshire. New Hampshire, not only in the primary, but in the general election has a lot of influence because it's a toss up state. Could go either way. Nevada's another one. I think they have six electoral votes. They've sort of been sometimes a battleground state, sometimes not. So they get some benefit from that. Under popular vote, nobody's taken off the table the way that 70 to 80% of the voters in the country today are taken off the table every four years. So our campaign's going to come to Vermont for weeks on end? Of course not. We have 630,000 people but they're not taking us off the table, right? We have telephones, we have mailboxes, and we have cable TV. So campaigns will be engaging with us because it'll be about margins. I ran for the house for many years and represented a chunk of Burlington in the State House in Vermont, and my section of Burlington included UVM. So I was on campus all the time trying to, every two years trying to register voters. And you could see how difficult that was. And there was a sort of an understanding. I mean, people didn't say, well, I'm not voting because the electoral college. But if you could engage with people a little bit, there was an understanding that why should I bother? Right? Or they'd say, oh, I can't register here. I live in Pennsylvania. And we would furiously get out that absentee ballot form from Pennsylvania that we had at our table. That all changes. If you have every vote equal, well, who cares where your votes come from? You might as well get some more votes in Burlington, just like you would in rural Vermont, just like you would in upstate New York. A vote is a vote is a vote. And so the small states would no longer be shut out. The rural states would no longer be off the table like they are today. And the campaigns will basically sprinkle their efforts around the country based on the population. They'll go crudely to every congressional district, right? Because those are equally spread out around the country. And most importantly, grassroots activists will have every reason to engage with their neighbors, with their family, with their coworkers. Whereas today, you want to get involved, you know, you drive to the nearest battleground state, or you make phone calls into a battleground state. And that is a very disempowering for our democratic process that it's kind of a rare volunteer that's going to engage in that way. But if every vote matters, then if you're a Democrat in Oklahoma, you bother to show up and maybe you do try to bring your friend with you, right? Whereas today it's totally meaningless for you to do that.

The Downballot comes out every Thursday everywhere you listen to podcasts! As a reminder, you can reach our hosts by email at thedownballot@dailykos.com. Please send in any questions you may have for next week's mailbag. You can also reach out via Twitter at @DKElections.

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